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LePage’s Threat to Remove Sheriffs Runs Afoul of Constitution

On a conservative radio talk show this Monday, Maine Governor Paul LePage threatened to remove from office two elected sheriffs if they fail to comply with federal immigration enforcement efforts.

This would be a violation of the United States Constitution, one that could almost immediately be subject to a vigorous legal challenge.

LePage’s threat is seemingly in response to Cumberland County Sheriff Kevin Joyce’s letter earlier this month to the Department of Homeland Security, stating that he would no longer comply with federal immigration “detainers” without a warrant. These detainers are requests to hold inmates past their scheduled release dates so that federal immigration authorities can take them into custody. Joyce expressed concern that such practices may lead to claims of unlawful arrest and detention, and potentially costly legal action.

While the Governor is correct that the Maine Constitution affords him the ability to remove a sheriff who is not “faithfully or efficiently performing any duty imposed upon the sheriff by law,” it’s hard to imagine how this provision would apply in this case.

One of the key functions of the U.S. Constitution is to establish the separation of powers between the federal government in relation to state and local governments—what we call “vertical federalism.” This has important implications for how our government functions and what officials at various levels can and cannot do legally.

In that vein, the 10th Amendment of the U.S. Constitution prevents the federal government from “commandeering” state and local authorities, compelling these entities to carry out federal mandates, in areas where it is not expressly granted authority in the constitution. One area reserved to states in this framework is the “police power”—laws designed to regulate the health, safety, and well-being of their population. The federal government can create laws in these categories; but it cannot compel states and localities to use their public resources to enforce them.

The Supreme Court has reliably struck down laws that compel states to enforce federal law. For instance, in 1997’s Printz v. United States, the Court struck down aspects of the Brady Handgun Violence Prevention Act that would have compelled local law enforcement to enforce federal gun laws. More recently, in 2012, the Court ruled that the federal government could not compel states in a more indirect manner, making federal funding for Medicaid conditional on their expanding the program as part of the Affordable Care Act. Immigration enforcement is another such area in which this general principle applies.

Admittedly, what the Governor has threatened is slightly different in its mechanics. However, it is equally problematic in terms of protecting the balance of powers enshrined in the Constitution. LePage has proposed what legal scholar Margaret Hu calls “reverse commandeering,” where the local authorities attempt to usurp federal authority over immigration policy. The clearest recent example of this was Arizona’s controversial SB1070 law, challenged before the Supreme Court. This is a law which former Solicitor General Don Verrilli claimed would risk “…supplant[ing] the federal government’s role in setting immigration policy…” potentially leading to “…fifty different immigration policies.”

Lepage’s threat undermines the idea that collaboration between federal and local authorities should be voluntary and unforced in those areas that are the domain of state and local authorities. It also intrudes deeply into the federal government’s sole and complete jurisdiction over immigration policy. As Governor of Maine, he has no business trying to engineer an immigration policy outcome.

Such maneuvers have not been successful elsewhere. Just this year, federal judge Orlando Garcia issued a ruling that stopped a controversial Texas law, SB4, one that would have forced local police departments to cooperate with federal Immigration and Customs Enforcement (ICE) officials on the issue of detainers. Also, this year, the Massachusetts Supreme Judicial Court ruled that ICE detainers do not constitute a sufficient justification to hold individuals in custody beyond their release date.

In short, Sheriff Kevin Joyce’s fears about complying with the ICE detainers are well founded, and he is within his rights to choose whether he wants to cooperate with federal immigration authorities or not.

Furthermore, LePage would be committing a serious misstep, one that would likely lead to legal action, if he attempted to use his powers to punish Joyce or any other law enforcement officer for exercising their constitutionally protected discretion in this area.

Robert W. Glover is an associate professor of political science and honors at the University of Maine in Orono. He is the co-leader of the Maine chapter of the national Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications.